PART 2. or of the laws of the respective states, it does not fall within the design of this work to notice them.1

It results then, that the forms of executions (except their style), from the courts of the United States; their force and effect, and the duty of the marshal in levying, appraising (in some of the states), advertising and selling; are to be ascertained by reference to the laws of the respective states, as they were on the 19th of May, 1828, except in those states in which the law in relation to one or more of these particulars has since been changed, and the national courts in such states have also, in their discretion, adopted such innovations, by rule of court; and except also such subsequent state legislation as relates to imprisonment for debt, and which falls therefore within the purview of the act of February 28, 1839, and 14th January, 1841.

The State of New York will serve as the most apposite example to illustrate what is here said. Since the 19th of May, 1828, a code of laws in many respects new, and containing several provisions relative to the subject under consideration has gone into operation. For instance, not to mention other changes, new regulations are introduced relative to the right of redeeming land sold by execution. These regulations being subsequent to the act of 1828 (which it has been seen, is not prospective), and not being embraced by the act of 1839, would, per se, be inoperative in the national courts of the State of New York. But according to the principles established by the cases cited in the last preceding note, and by the case of Ross et al. v. Duval et al., 13 Peters, 45; and indeed by the express terms of the act of 1828,

'The case of Wayman et al. v. Southard et al. (Wheat., 1), and of the Bank of the United States v. Halstead (10 Wheat., 61), are exceptions to this remark, but have already been noticed in the first Part of this work.

the national courts in New York had power to adopt CHAP. 2. these regulations by rule. This power has been exercised. By a rule of the district court for the northern district, made in 1831, and adopted by the circuit court, the practice of the supreme court of the state as regulated by rules of court and by the laws of the state is adopted:1 and in the circuit court for the southern district, the following explicit rules have been made: "In the sale of real estate under execution issuing from this court, the marshal shall conform his proceedings to the directions of the law of this state, now in force, in relation to the sale of real estate on execution, and in addition to the certificate filed with the clerk of the county, where the lands sold are situated, shall file a copy thereof with the clerk of this court."

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Redemption of lands, sold under execution out of this court, may be made in the same manner, and with like effect, and by the same persons, as prescribed by the law of this state now in force, and sales by the marshal shall be made subject to such redemption."

Again in 1831, the legislature of the State of New York passed an act "to abolish imprisonment for debt, and to punish fraudulent debtors." It was probably within the large discretionary powers confided by law to the national courts, so far at least as imprisonment on final process was concerned, to adopt by rule the provisions of this state law. But the change was deemed too important to be introduced by judicial authority alone, and the act, therefore, continued to be inoperative in the national courts until it was expressly adopted by the act of congress of February 28, 1839.

'Appendix, Rule 83, D. C., and Rule 6, C. C.

PART 2. In accordance with the policy originally adopted, and steadily adhered to, of requiring the national courts, in the administration of justice, to conform to the laws of the state in which they sit, congress have seen fit to ordain, "that on all judgments in civil cases, hereafter recovered in the circuit or district courts of the United States, interest shall be allowed, and may be levied by the marshal under process of execution issued thereon, in all cases where, by the laws of the state in which such circuit or district court shall be held, interest may be levied under process of execution on judgments recovered in the courts of such state, to be calculated from the date of the judgment, and at such rate per annum as is allowed by law on judgments recovered in the courts of such state."

SECTION IX.

The design of this section is to notice certain matters appertaining to the management of suits at common law, but not referable exclusively to any particular stage of the suit.

1. Amendments and jeofails.

Relative to this subject, the judicial act of 24th September, 1789, contains the following highly important provision, viz.:

"That no summons, writ, declaration, return, process, judgment, or other proceedings in civil cases, in any of the courts of the United States, shall be abated, arrested, quashed or reversed for any defect or want of form; but the said courts, respectively, shall proceed to give judgment according as the right of the cause, and matter in law, shall appear unto them, without regarding any imperfections, defects, or want of form in such writ, declaration, or other pleading, return, process, judgment, or cause of proceeding whatsoever, except those only in cases of demurrer, which the party

demurring shall specially set down and express, together with CHAP. 2. his demurrer as the cause thereof. And the said courts, respectively, shall and may, by virtue of this act, from time to time, amend all and every such imperfections, defects, and wants of form, other than those only, which the party demurring shall express as aforesaid; and may, at any time, permit either of the parties to amend any defect in the process or pleadings, upon such conditions as the said courts, respectively, shall, in their discretion, by their rules prescribe."1

It is obvious at first view, that the subtile niceties of the common law, in pleading, are here amply provided against, and that the authority conferred upon the courts to allow amendments, as well in matters of substance as of form, in furtherance of justice, is very extensive. The first reported case I have met with in which this enactment was brought under minute consideration, is that of Smith v. Jackson, 1 Paine, 486. It is there said, as indeed is very clear, that every part of the section, except the last clause of it, relates to defects in matters of form; and that the last clause, extends to matters of substance. And it was held that the defects in substance can only be amended while the proceedings are in fieri, and before judgment, and cannot, like mere formal defects, be disregarded by the appellate court. But in an anonymous case, 1 Gallis. R., 22, the statute was held to be sufficiently comprehensive to embrace causes under appellate as well as original jurisdiction: and this decision is referred to with approbation in Kennedy v. The Bank of Georgia (8 Howard, 586, 610), where it is held that this power may be exercised by the supreme court upon a record before it on appeal, though the usual practice has been to remand the case to the circuit for amendment.

'Ch. 20, § 32: 1 Stat. at Large, p. 73.

PART 2.

What is only matter of form, and what matter of substance, is a nice and often an embarrassing question.

The party demurring may indeed always avoid encountering it, by putting in a special demurrer, in all cases where the defect is not clearly one of substance; but the question will, nevertheless, occur, according to the above decision, upon motions to amend after judgment, and upon writ of error.

2. Death, and substitution of parties.

The provisions of the laws of the United States against the abatement of suits by death, are very ample. Concerning the effect of marriage in this respect, they are silent: leaving such effect to be determined by the rules of the common law, or the statutes of the several states.

The 31st section of the judicial act, is as follows:

"That where any suit shall be depending in any court of the United States, and either of the parties shall die before final judgment, the executor or administrator of such deceased party, who was plaintiff, petitioner, or defendant, in case the cause of action doth by law survive, shall have full power to prosecute or defend such suit, or action, until final judgment, and the defendant or defendants are hereby obliged to answer thereto accordingly; and the court before whom such case may be depending, is hereby empowered and directed to hear and determine the same, and to render judg ment for or against the executor or administrator, as the case may require. And if such executor or administrator, having been duly served with a scire facias, from the office of the clerk of the court where such suit is depending, twenty days beforehand, shall neglect or refuse to become a party to the suit, the court may render judgment against the deceased party, in the same manner as if the executor or administrator had voluntarily made himself a party to the suit; and the executor or administrator who shall become a party as afore